Legal Instrument Choice in the European Union

Abstract

Regulations and directives are the central legal instruments used by the EU. In some instances, the Commission is not legally required to choose a specific legal instrument, but can make this decision autonomously. However, we know surprisingly little about the factors that influence this decision. Based on an original dataset of all directives and regulations proposed by the European Commission in ordinary legislative procedures between 2009 and 2018, we find that the choice of a legal instrument is strongly determined by prior policy decisions and varies systematically across policy areas depending on the extent to which they have traditionally been addressed under the co-decision procedure. In addition, we find that the Commission's use of regulations increases under conditions of increased euroscepticism, indicating that instead of granting dissenting member states more room to manoeuvre, the Commission prefers to keep them on a short leash.

The Challenging Paths to Net-Zero Emissions: Insights from the Monitoring of National Policy Mixes

“…This suggests significant path dependency in the overall trajectory of EU climate policy. The radical change that some suggest is required to reach the EU's long-term targets could nevertheless appear as major qualitative adjustments within existing policy types: for example, economic or regulatory instruments that dismantle the existing fossil economy (see also Hurka and Steinebach 2020;Kivimaa and Kern 2016). This evidence of path dependency chimes with the insights of other scholars who have examined the EU's 2030 framework (Kulovesi and Oberthür 2020).…”

Facilitating access to data on European Union laws

“…3. For example, both Rauh (2020) and Hurka and Steinbach (2020) collect similar datasets of Commission proposals which should be the same size for the overlapping period 2010-2016. In practice, the size of the datasets diverges by some 50 observations.…”

“…17. Hurka and Steinbach (2020) document the significant degree of discretion enjoyed by the EU legislator in deciding what type of legal act to use. 18.…”

“…Since the 1990s, decisions have been steadily on the rise and today account for half of all legal acts enacted by the EU. Although the different legal implications of each type of act are well-known, it is not clear to what extent they drive the variation in the use of the instruments (Hurka and Steinbach 2020). 16 Continuing with the same dataset, I look at the thematic content of the legal acts as described by EuroVoc terms.…”

“…From legislative politics (e.g. Rauh 2020;Hurka and Steinbach 2020;Blom-Hansen 2019;Kardasheva 2013) through law and economics (e.g. Lampach, Wijtvliet, and Dyevre 2020;Marciano and Josselin 2002) to computational linguistics (e.g.…”